The Professor and the Prosecutor: Anita Alvarez’s office turns up the heat on David Protess’s Medill Innocence Project

The Cook County State’s Attorney’s Office provides at least two reporters a memo containing scurrilous and unsubstantiated claims about the conduct of the Northwestern University journalism professor and his students in an earlier case.

By Bryan Smith

Published Jan. 4, 2010

Professor David Protess, the head of the Medill Innocence Project, has refused to turn over certain materials to the Cook County state’s attorney, Anita Alvarez. Photography: (left) Tom Maday Photo assistant: Jeffrey Ross; (right) Chicago Tribune photo by Brian Cassella

In their own ways, they have risen to stardom on a stage built from misery, two battlers who grapple with questions of life-and-death justice: Anita Alvarez, a Chicago native and career prosecutor with working-class roots, who dramatically emerged from a pack of formidable opponents to become the first woman and first person of Hispanic descent to hold the top job in the second-largest prosecutor’s office in the nation; and the Northwestern University professor David Protess, a crusader against wrongful convictions who has guided his students to find fresh evidence that helped free five people from death row and sprang six others from imprisonment for murders they did not commit—putting prosecutors on the defensive with each notch in his belt.

Over the more than two decades they built their careers, the two rarely crossed paths. That changed when Alvarez, who took office a little over a year ago, found herself dealing with the latest Protess cause: the claim that a man named Anthony McKinney had been wrongly jailed for more than 30 years.

In this case, Alvarez turned the tables on Protess, challenging the motives and ethics of him and his students. In a court filing, her office has given voice to deeply unflattering, sometimes personal accusations: that some students may have paid a witness to recant; that other students “flirted” with witnesses, in effect, to persuade them to make incriminating statements; and that students may have been so driven to get an A that they twisted or suppressed evidence to suit their cause of freeing McKinney.

Alvarez insists that she is simply doing what a prosecutor should do—make every reasonable effort to ascertain the truth behind possible evidence and testimony in a criminal case. “I have a duty to seek out whatever evidence is out there, and that’s what I’m doing,” she told me.

Her approach, however, has set off a national controversy and ignited counteraccusations that her real interest is to intimidate, bully, and perhaps destroy Protess’s operation. Alvarez dismisses those allegations as “insulting.”

Meanwhile, outside court, her office has given at least two reporters a memo about a 1996 case as “background” information. The memo recounts scurrilous and unsubstantiated claims about the conduct of Protess and students who were working on an investigation that resulted in freeing two men from death row and two others from life sentences. “What on earth does [an old] memo based on lies and designed to smear my students have to do with the truth of whether Anthony McKinney was wrongfully convicted?” asks Protess.

Now, a case that was about whether a convicted man is innocent has morphed into an increasingly personal brawl between two heavyweights unwilling to back down—with academics, prosecutors, freedom of the press advocates, and students hanging on the judge’s decision.

David Protess, with his former students Nicole Lapin and Evan Benn, in November at the Cook County criminal courthouse Photograph: Chicago Tribune photo by Nancy Stone

In her 32nd-floor Loop suite, with its panoramic view of Millennium Park, Anita Alvarez managed a wry smile when I asked her reaction to some of the more stinging editorial headlines that have appeared since the legal flap took wing late last fall—for example, a Huffington Post essay likening her office to the Gestapo.

Clad in a conservatively cut navy blue suit, occasionally consulting a legal pad resting next to her on a wood conference table, Alvarez, 50, denied—as she did in a tartly worded op-ed article in the Chicago Tribune—any sort of vendetta against Protess or the students in his Medill Innocence Project. She also said she has been particularly offended by the force, scope, and ad hominem nature of the criticism.

“Some of it has been hurtful,” she said. “I don’t appreciate the word ‘Gestapo’ in the same sentence as my name. . . . These people don’t know me, don’t know what I’ve done for the past 23 years as a prosecutor. I think it’s unfortunate that I am being personally attacked.”

She added, “I don’t know why Professor Protess has decided to go on this national campaign—creating this us-versus-them theory out there.”

Hunched over a salad at Ina’s café in the West Loop, his thinning hair almost entirely white, the 63-year-old, slightly rumpled Protess responded with the kind of bulldog ferocity that delights his fans and irritates his detractors. He sees a terrible miscarriage of justice—and he’s been notebook-deep in such miscarriages for more than 20 years, first as a research director for the Better Government Association and a contributing editor to Chicago Lawyer magazine, and for the last 11 years as head of the Medill Innocence Project, in which teams of students in his investigative journalism class are sent into the field to reexamine the evidence behind possible wrongful convictions.

Protess insisted that Alvarez picked this fight—and she made it personal. “The us-versus-them theory is unfortunate,” he told me, “but its source is Anita Alvarez’s prosecutors. . . . We voluntarily gave them new evidence of a prisoner’s innocence [and] they slapped us with subpoenas.”

The battle is being waged before the circuit court judge Diane Gordon Cannon as part of the proceedings reviewing the conviction of McKinney. As this story went to press, lawyers from Northwestern were preparing to meet a January deadline to respond to Alvarez’s latest filing. Oral arguments are expected to follow soon after.

One measure of how bitter the fight has become is the internal memo, a copy of which was plucked from the files of the Cook County state’s attorney’s office and provided by Alvarez’s spokeswoman, Sally Daly, to at least two news organizations, including Chicago.

Though it is not clear who wrote the memo, the document was apparently prepared in the aftermath of the so-called Ford Heights Four case, in which the Innocence Project helped free four men imprisoned for a double murder they did not commit. The men won a $36-million settlement from Cook County after they were pardoned and released in 1996, and the case made stars out of Protess and his students.

While purporting to describe the investigation that led to the freeing of the men, the memo includes personal allegations that Protess and his students engaged in a wide range of questionable conduct. At least one reference to possible misconduct (which Protess has denied and will not be repeated here) has nothing directly to do with the facts of the Ford Heights Four case. Protess says that other allegations—such as the suggestion that he paid $2,000 to a man who confessed to the murders—were discredited.

“Obviously, if that information had any kind of credibility, Jack O’Malley, who was state’s attorney at the time, would not have freed the Ford Heights Four and incarcerated the three guilty people we brought to his attention,” Protess says. (Calls to O’Malley, now an Illinois appellate judge, were not returned.)

When I asked Alvarez whether she thought it was appropriate for the Cook County state’s attorney’s office to be distributing an old memo filled with unsubstantiated accusations against people with whom she is locked in a legal battle, she appeared stunned. Sally Daly had joined us for the interview, and at that point she jumped in. The document was provided, she said, “in the interest of trying to get the whole picture out there, as opposed to only Professor Protess’s version of facts.”

I asked Alvarez if the document had been offered with her approval. “No,” she said. Daly later told me that the office would have no further comment on the memo.

Protess says he first learned of the memo when a reporter called asking for a response to the allegations it contained. He says he was shocked and angry that “the state, having spent six months harassing my students, are now so desperate that they are leaking internal memoranda.”

Anthony Porter, who was freed from death row by evidence uncovered by the Innocence Project Photography: (Porter) Chicago Tribune photo by Chuck Berman; (McKinney) Courtesy of Cook CountyAnthony McKinney

Nearly lost in the rancor is the man whose 1981 murder conviction and subsequent life sentence set the Protess-Alvarez clash in motion. Anthony McKinney was a teenager on September 15, 1978, when a security guard named Donald Lundahl was killed in his car by a shotgun blast during an apparent robbery in Harvey.

McKinney was held for questioning after he ran up to police on the scene, saying he was being chased by a group of gang members. McKinney immediately became the prime suspect, but he denied any involvement, and the police—lacking a murder weapon—released him after questioning. Within days, detectives arrested him and said two eyewitnesses had identified him as the killer.

McKinney again denied involvement, but after a long interrogation, he signed a confession. At his trial he recanted, claiming that he had been beaten into giving the statement. He also offered an alibi that was backed by his father: He had been watching the Ali-Spinks championship fight during the time of the murder, set at between 9:30 and 9:45 p.m.

Despite the absence of any physical evidence, McKinney was convicted. Prosecutors originally sought the death penalty, but a judge sentenced him to life. Since that time, according to McKinney’s lawyers, he has been housed in psychiatric units of the Illinois Department of Corrections and continues to insist that he is innocent.

The case was brought to the attention of Protess and his Innocence Project in the fall of 2003 through Michael McKinney, Anthony’s younger brother. (Protess says he sifts through thousands of cases for wrongful convictions.) Over the next three years, nine teams of students in Protess’s investigative journalism class revisited every detail of the case.

With the aid of Sergio Serritella, a private investigator who helps teach the class, the students tracked down the two witnesses who originally identified McKinney. One man, Wayne Phillips, had testified that from 50 yards away he heard McKinney threaten the victim and utter the words, “Your money or your life.” Both witnesses recanted to the students, alleging that they identified McKinney only after being beaten and threatened by the case’s lead detective, who, the students discovered, had a history of brutality complaints against him. The students also located two admitted gang members who said they had indeed chased McKinney the night of the murder, as he had claimed.

Most importantly, the students found a man named Anthony Drake, a gang member who had pleaded guilty in 1988 to beating a disabled man to death. In a videotaped statement, Drake told the students that he was present when the Lundahl murder took place and that McKinney was not. What’s more, Drake said on the tape, another man, Roger McGruder, committed the murder, while a man named Michael Lane was at the scene. (Both have denied any involvement.)

In 2005, the students tracked down Drake’s nephew, Francis, who signed a statement swearing that on the night of the murder, his uncle and Lane had admitted their involvement in the killing. Francis, who was eight at the time of the murder, recalled that his uncle was “very nervous and excited” and his voice sounded “higher, like he was upset.”

By 2006, the students had shared what they had found with the Center on Wrongful Convictions at Northwestern’s Bluhm Legal Clinic—a sister group of sorts to Protess’s Innocence Project that is made up of law-school faculty, outside attorneys, and law students who represent imprisoned clients with claims of innocence. People at the center vetted the information, and, in the summer of 2006, the center, with Protess’s blessing, turned over the students’ findings to the office of the Cook County state’s attorney, Dick Devine—“the way we’ve done with all our investigations,” Protess says.

Two years later, in October 2008, lawyers for the center filed a petition asking that McKinney’s conviction be vacated or that he be granted a new trial. In the meantime, Protess posted the results of the investigation on the Innocence Project’s website and cooperated with the journalist Maurice Possley on a November 20, 2008, front-page article in the Chicago Sun-Times.

Protess says he and his students cooperated fully with prosecutors. Indeed, he says, two prosecutors from the state’s attorney’s office flew to Miami to see one of the students, Evan Benn—by then a reporter with the Miami Herald—and treated him to dinner while they debriefed him on the McKinney case. “I did not see this as an adversarial process, based on past experience,” Protess says. He assumed the case would go the way of the previous 11 wrongful convictions he and his students had helped overturn—with the outcome rising and falling on the merits of the information they had uncovered.

The tone of the situation changed in May 2009, five months after Alvarez had been sworn into office, when she served a subpoena she had filed in April—a court-backed document demanding that Protess turn over a thick portfolio of material touching on the McKinney investigation. The subpoena asked for all unpublished interviews; all notes, memoranda, reports, and summaries made by the students; all electronic communications involving the case; and the grade each student who worked on the case received each quarter, the grading criteria, and course syllabi.

Protess was stunned. “I said, ‘Holy shit. They don’t want to just litigate the McKinney case. They want to litigate us.’ ” That night, he told his wife, “Well, Anita Alvarez just declared war on our Innocence Project.”

According to Protess, his lawyers, Richard J. O’Brien and Linda R. Friedlieb of the big Chicago law firm Sidley Austin, sent a “sternly worded” letter to Alvarez’s office demanding that the subpoena be either withdrawn or significantly narrowed. When Alvarez’s office refused, the lawyers filed a motion to quash the subpoena on the grounds, among others, that the students were reporters and therefore protected by the Illinois reporter shield law, which gives journalists special privileges to withhold certain unpublished information. The grades, Protess’s lawyers argue, are protected by federal law.

Alvarez’s response in early November touched the match to the tinder. By then, her office had spent months re-interviewing the witnesses produced by the students, and now the prosecutors recounted in detail their version of what had transpired. The students had been “snotty and manipulative,” Anthony Drake was quoted as saying in a report included as an exhibit. Michael Lane, one of the men Drake placed at the scene of the murder, told investigators that the female students had “com[e] on” to him, acting as if they were going to “give up some pussy if I would talk to them,” according to another exhibit attached to the filing. (Lane told the investigator he knew it was “all an act” but decided to talk anyway, according to the exhibit.) Both Anthony Drake and his nephew, Francis, recanted the statements they had given to the students.

Perhaps the most serious accusation was that the Innocence Project had paid Drake for the videotaped interview that exculpated McKinney—a statement that explicitly contradicts what Drake said on the tape. Prosecutors allege the payment arrangement was indirect: According to the exhibit, someone associated with the Innocence Project intentionally overpaid a cabdriver by $40 in a wink-and-a-nod ruse to funnel money to Drake.

The prosecutors’ version of events says that after the taping, “a detective” gave the cabdriver $60 to drive Drake two miles and told the driver to give $40 to Drake and keep the rest as a tip. Prosecutors say Drake then used the $40 to buy crack. Drake’s account is supported, they claim, by the cabdriver’s log.

But Evan Benn—the former student whom prosecutors took to dinner in Miami—insists the cabbie told him the trip would cost from $40 to $45. According to a first-person account he wrote in the St. Louis Post-Dispatch, where he now works, the driver was given $60 and told to keep the change as a tip. “We had no way of knowing the cabbie would drop Drake off two miles away,” Benn wrote.

In any case, from Protess’s point of view, the claim that someone would confess to being present at a capital murder in return for part of a cab fare “is so inherently implausible that I can’t believe that the state is even trying to put it out there.”

Beyond the question of payments, Protess says he is particularly outraged at the suggestion that his female students flirted with witnesses to get them to implicate themselves. “As a female professional, for [Alvarez] to say that about my professional female students is offensive,” Protess says.

I asked one of the female former students who had worked on the Ford Heights Four case, Laura Sullivan—now a correspondent at National Public Radio—if she had ever flirted to get information. “Never. Not once,” she said. Did Protess ever suggest that such behavior was an appropriate tactic? “He was way too professional for that.”

That’s not to say that Protess’s methods haven’t occasionally raised eyebrows. In the Ford Heights Four case, for example, Protess arranged for Paul Ciolino, a private investigator who was working with the class, to pose as the high-powered Hollywood producer Jerry Bruckheimer during an interview with a witness. (The incident is described in the state’s attorney’s “background” memo.) According to an account in Protess’s book on the case, A Promise of Justice, Ciolino, with slicked-back hair, wearing a sharkskin suit and gold cuff links, told the witness, “If you’re willing to tell your story, it could be worth something.” Most mainstream journalists would frown upon assuming a false identity to gather information.

(The ploy did not affect the outcome of the case. For his part, Protess says that at the time, the tactic was “a perfectly legitimate technique. It’s been part of a Chicago tradition of investigative reporting for decades.”)

When I asked Alvarez if she thought the charges involving the overpayment and the flirting were plausible, or even worth pursuing, she said, “When you say, ‘Is it plausible’—I’ve seen so much in my 23 years as a prosecutor. Anything is possible.”

Her goal, she insisted, is not to smear Protess or the students. “We are in the midst of looking at this case, and we have been for two years plus, and there have been serious credibility issues that have arisen based on our interviews with witnesses that Northwestern has already interviewed. . . . To suggest that it’s a vendetta is false, and it’s misleading.”

The “vendetta” accusation has mainly grown out of Alvarez’s demand to see the grades of the students who worked on the McKinney case. Her office says it has pursued the matter in part because of a statement given to them by Michael Lane, who told investigators that the students were being nice to him so he would “give them an interview . . . so they could get a good grade.” That statement, says Alvarez, “begs the question, Would a student do this and why?”

Grades are typically protected under federal law, though they can be obtained under court order. In this case, however, almost unanimously, experts in media law have questioned the relevance, propriety, and motivation behind such a request. “Once you start asking for grades, we’re no longer debating the merits” of the case at hand, says Damon E. Dunn, a media lawyer with the Chicago firm Funkhouser Vegosen Liebman & Dunn. “Now you’re bordering more on harassing the students.”

Erik Ugland, a media lawyer and assistant professor at Marquette University’s Diederich College of Communication, says the demand for students’ grades “makes me suspicious about the sincerity of the prosecutors’ concerns.” He continues, “It makes them look defensive and petty and, I think, invites the conclusion that their real aim is not to discover the truth but to beat back any public scrutiny of their work.”

One former student, Diana Samuels, who says she received an A in the class in 2008 after finding evidence that confirmed a man’s guilt rather than exonerating him, told me, “You don’t take that class for a grade. Honestly, it’s about the experience of going out there and working on a real case.”

Alvarez calls the brouhaha over grades a red herring. “Everybody’s focus is on grades and not focusing on all this other information that is relevant. The grades are only 1 percent of what we’re looking for. Ninety-nine percent of what was contained in that subpoena is all relevant information that we are entitled to.”

The outcome of the dispute may hinge in part on whether the students in Protess’s class are reporters. The Innocence Project contends that they are, and thus are protected by the Illinois reporter shield law.

Alvarez counters that the students were acting as criminal investigators, not reporters. “When I was a law student, I wasn’t a lawyer,” she says. “These students wrote no newspaper story on this case, they wrote no magazine articles. . . . What is the purpose of this particular class? . . . The whole purpose of this was to gather information for court, to gather information that they believe is going to exonerate someone.”

As investigators, she argues, the students should meet the same obligations as any other investigator in a criminal matter—and that would be to turn over any material that might be deemed relevant. For instance, she says the students interviewed Michael Lane but did not tender any internal notes, statements, or reports about the interview, as an investigator would have to.

In her November filing, Alvarez argues that even if a judge rules that the students are protected by the shield law, they waived their protection by providing information to the Center on Wrongful Convictions. “There are rules we have to abide by in court,” she says. “We could never hold back [information] or pick and choose and say, ‘I interviewed this guy five times, but I’m only giving you this one videotape.’ Well, if you taped him five times, you’ve got to give us those five tapes. . . . All that is relevant information for us. It’s necessary in the whole truth-seeking process.”

Protess responds that Alvarez doesn’t understand the nature of what he and his students do: “Anita Alvarez is apparently unable to hold two compatible but different terms in her head. She claims we’re investigators, not journalists. We claim that we’re investigative journalists—two concepts put together into a time-honored tradition of journalism that goes back centuries.”

A fellow Illinois prosecutor, however, strongly backs Alvarez’s contention. The DuPage County state’s attorney, Joseph Birkett, who calls himself a staunch defender of the state’s reporter shield law, agrees that the students gave up their privilege by working “hand in hand” with defense lawyers. “If you are working on an investigation and are assembling evidence for a team of lawyers, I’m sorry, you may be a journalist, but in that scenario you are an investigator, and the journalistic privilege is not going to apply,” he says.

People in and around the media business have rallied behind Protess and the students. H. Lee Sarokin, a former federal judge and a regular contributor to The Huffington Post, wrote the blistering essay that invoked the Gestapo. “It is a flagrant attempt to intimidate the Medill Innocence Project and other similar projects which have been so successful in overturning wrongful convictions,” Sarokin wrote of the subpoena. In another post, he wrote: “One can understand that the prosecutor’s office might be embarrassed as a result by the efforts of a bunch of journalism students, but such embarrassment does not warrant a vendetta against them.”

On the other hand, several prosecutors have spoken out on behalf of Alvarez. “I know Anita Alvarez—she’s a friend,” says Birkett. “I do not think [she] would be involved in any witch hunt. . . . I truly think if she’s pursuing this, there’s something to it.”

Alvarez’s predecessor, Dick Devine, doubts that her motives are questionable. “I believe that whatever approach is being taken by her is being taken because she believes it’s the right thing to do,” he says. (Alvarez served as Devine’s chief of staff, though in the 2008 election he supported another candidate.) “I believe she’s going into this with honest motives.”

Still, Devine says that in the wrongful conviction case of Anthony Porter, who was freed largely because of information uncovered by the Innocence Project, he never considered subpoenaing the Northwestern students. “I concluded from what I saw that we had to get Mr. Porter out on bond promptly while we sorted out this new evidence,” he says.

Alvarez insists she is being every bit as evenhanded as Devine was. “This isn’t a contest,” she says. “I’m not attacking the Innocence Project, and I didn’t when we filed the subpoena. I think they play a valid role and we can work together on cases. . . . Presently we’re working with them on two other cases in addition to this one.”

Protess remains unconvinced. “Her office has subpoenaed my students’ grades, questioned their motivation, claimed they bribed witnesses, leaked false information about them from a case that’s 13 years old, accused them of being an arm of the defense team—and that’s not counting the stuff [her office has] said about me. I’d hate to think what Anita Alvarez would do if she really wanted to attack our Innocence Project.”